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Just like when you have waited an eternity for a bus, and two or more come at once, so it is with inquiries into state capture.
This past week, two parliamentary committees sat simultaneously, one hearing testimony from former Eskom chief executive officer Brian Dames, and the other questioning Mineral Resources Minister Mosebenzi Zwane about state capture allegations and his links to the notorious Gupta family.
Almost a year after Thuli Madonsela’s State of Capture report was published, we are finally starting to interrogate the preliminary findings and observations contained in it, yet not in the way the erstwhile Public Protector envisaged.
She looked at state financing of Gupta businesses, based on contracts with state-owned enterprises, and the influence of the Guptas and the president’s son on the appointment of Cabinet ministers.
One of the key follow-up actions Madonsela proposed was the establishment of a judicial commission of inquiry.
This commission, headed by a judge selected by the Chief Justice, should have been in place within 30 days of the release of the report.
Instead of implementing the remedial action, President Jacob Zuma headed for the courts and launched a review application on December 2 2016.
In two days, the North Gauteng High Court in Pretoria will hear his application to review this component of the remedial action.
He intends to argue that Madonsela unlawfully usurped his powers to appoint a commission of inquiry.
The president is also belatedly challenging the remedial action that directs that the commission should have powers to collect evidence that match the powers of the Public Protector, and that the commission’s report be presented within 180 days.
This may be another attempt to delay the proceedings, but none of the respondents will succumb to this procedural sleight of hand; instead we will oppose it substantively in court.
The president is essentially arguing that he has the constitutional authority to appoint a judicial commission and that he cannot be directed by another to do so; that the remedial action offends against the separation of powers by asserting that the Public Protector can order a commission of inquiry; that commissions are designed to investigate matters of public concern, and the president has not made that designation; that the Public Protector cannot “outsource” her powers to a commission; and, bizarrely, that judges should not preside over commissions of inquiry.
Scraping the lower reaches of the barrel appears to have become the president’s new legal strategy.
It is noteworthy that he does not seek to set aside Madonsela’s report as a whole, just some of its remedial action.
Judicial commission
A judicial commission is an appropriate fact-finding inquiry, conducted in the open, thereby promoting public confidence and accountability.
It has been used by none other than Zuma himself in relation to Marikana, the arms deal and the Fees Must Fall protests.
It matters not that the Public Protector has directed the president to initiate such a commission – it is an inherent part of her armour that organs of state (including the president) can be directed to fulfil a constitutional obligation in order to rectify a wrong.
That much ought to be abundantly clear from the Nkandla judgment.
The president has himself agreed that a commission of inquiry is required.
Answering questions in the National Assembly on June 22, Zuma said: “We have taken a decision to establish the judicial commission of inquiry … which should tell us exactly what happened and to what extent are they disrupting the life of South Africans.
"We are moving as fast as possible to establish the commission.” Four months later, there is no sign of movement. But it is clear that the president deems such an inquiry a matter of public concern.
The Council for the Advancement of the SA Constitution (Casac) will argue that the president is conflicted in appointing the judge to lead the commission because he is personally implicated, either directly or through his family and associates.
He ought, therefore, to recuse himself from making this decision that will impact on the credibility of the commission.
Similarly, Zuma must abstain from framing the terms of reference of the inquiry, either by limiting it so that his conduct is outside its mandate, or expanding it so that the immediate concerns get buried in a wide-ranging investigation.
In addition, section 96 of the Constitution provides that “members of Cabinet may not act in a way that is inconsistent with their office or expose themselves to any situation involving the risk of a conflict of interest between their official responsibilities and private interests”.
Although the Constitution grants the president the authority to establish a commission of inquiry, according to section 84(2), his personal interest in the conduct of the commission requires that he recuse himself and allow the Chief Justice to select the presiding judge, and the Public Protector to frame the terms of reference.
This intrusion into the president’s powers, minimal as it is, is justified in these peculiar circumstances.
Exploring different routes to attain accountability
Zuma’s objection that the commission be granted powers no less than those the Public Protector possesses is legal nonsense – a commission enjoys the power to summon witnesses and documents and hear evidence under oath etc; in fact, commissions often enjoy powers greater than those granted to the Public Protector.
The time frames Madonsela set are eminently reasonable in the circumstances. State capture is of urgent public interest and importance and needs to be dealt with expeditiously to restore confidence in our systems of governance.
So a 180-day deadline for a dedicated forum with adequate funding will be achievable.
The president will be required to table a report to Parliament within 14 days of receiving the commission’s report, to ensure transparency and accountability.
We have seen, notably with the Heher commission’s report on funding tertiary education, how the president can delay publication and implementation of recommendations.
Whether or not Zuma’s review fails or succeeds, this should not prevent law enforcement agencies – the SA Police Service, the Hawks and the National Prosecuting Authority from fulfilling their constitutional and legal mandates.
Where evidence exists, there is an onus on these bodies to investigate and prosecute breaches of the laws.
In light of the “Gupta leaks” and exposés by investigative journalists, such evidence does exist.
It seems that the FBI in the US and the Serious Fraud Office in the UK are taking state capture more seriously than we are.
Many South Africans have lost faith in the ability and willingness of our institutions to act against the political elite and their associates. We must not stop demanding that they do so.
Even after a commission of inquiry or parliamentary investigations have completed their work, these very institutions will ultimately have to prosecute and hold lawbreakers to account.
While two buses may have arrived at the same time, neither is going to take us to our destination.
We need to continue exploring different routes to attain accountability for this pillage, including a commission of inquiry and law enforcement agencies, local and foreign, fulfilling their constitutional and legal mandates.
Naidoo is executive secretary of Casac – casac.org.za
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